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Headquarters Second Military District, 
Charleston, S. C, August 30th, 1867. 

Major-Genenil D. E. Sickles' report to the (reneral-in- 
('hief of the Army, relating to the issue made by the civil 
authorities with the Commanding General of the Second 
Military District, in the execution of the Acts of Congress 
for the o-overnment of the Rebel States. 



um'^ . 



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niOADQlARTERS SECOND MILITAKY DISTRICT, 
ClIARLKSTON, S. C, AUiiUSt 30, 18(>T. 

Ucupval ;— T have the honor, in comiiUance witli your instructions 
(Intcd the "i-ith in^t'int, to report tlie facts and eonsiderationi* hearinjj; 
ui)on tlie ((uestionVhich lias ;iris(Mi in North Carolina hetween the ci\ il 
and nulit;u-y authority; my report embraces, in accordance with 
your desire, the interpreta.tion given by me to paragraph II of General 
Orders No. 10; ;dso, refen nees to the Acts of Congress, from which is 
derived the authority exerci-ed in the jtromulgation of the military 
orders in fpie-tion ; and a strtement of some of the reasons justifying 
them. And if this comnumicjition shall ai)pear to be more vohuninous 
and "elnborite th:!n the occasion seems to )-e([uir(', my excuse will Ik' 
found, I trust, in the desire to omit nothing you might deem essential 
to the most exact review of all that has been done. 

The relusfd of the Mar>hal for the District ot North Carolina to give 
any information about the process of the ITnited States Courts in his 
liands, has prevented final action in the matter for the want of reliable 
otHci.tl data. Although for the s;;me n ason this report has been de- 
layed, no doubt is <Miteit dned as to the substantial accuracy of the 
informa.tion iicri\(>d from oilier -ourccs. ;;nd herewith conunimicated, 
in relation to the process the ^Nlar-hal dcmr.nds shall be executed. 

Early in ti:e prc-ent mnnth a conniiiinication was received from the 
Marshal tor the Di>tri<t of Ncrili Caiolina, dated July 80, 1867, in- 
fonnin.g me that Colonel Frank, commanding the ^Military Post of 
AVilmington, had (oi-bidden the enforcement of an execution issued at 
tbe June term of tb.e Ur.ited States Circuit Court. The communication, 
although excei:tionable in tone and matter, was refei'red to the Post 
Commander for rcjiort. Coloml Frank himself, about the same time, 
rei)orted that lu' ha,d tempoirrily suspemled tlu^ proce<'dings of the 
Dei)uty ]Mn--hal. assigning as tlie reason tor hi< action, th;;t the enforce- 
ment of the execution w;is bclie\ cd to be in viobdion of paragrr.ph If 
(ieneral Urdci- No. H). This nction of C<lunel Frank's was ai)proved ; 
and he was directed to npoit all ilie facts of tiie case, when luither 
i:iNtructions would be sent to him. 

On the ITth instant. Colonel Frank ha\ing reported that the ?ilarshal 
was iroceeding to enforce his process, the following connnunication 
on the sub ect was on tiie s:ime day addi-esscd to tbe Headquarters of 
the Army : 

HEAIKJUARTERS SECOND MILITARY DISTi'ICT, 

Cu.AHi FsroN. s. C., August 17. l^()7. 
Adjutant- Uenevdl. U. S. Army. Washington, IJ. C: 

't'be Coinui.nidiiig ( ){1ici'!- a.t NViluiiimiiai reports tome this nu)rniiig 
tliav the I'nited Statics Mirsha! for Norrh C.irolin i isin^tructed bv the 
Attoi-ney-(T;'n;'ral to enforce inunedi itch- all execurion> ot the United 
St;it,es C^uits and to reix.rt the n •lines of per- ons < .lb-ring obstructions, 
Willi a view to pi-occcd ag.dnst thcni i;nd( r tiie criniin.:d laws of the 



2 



d<,.,-eo„f „„yeo.„-t to be enforced in vioh,Ii„\f„re'xi 'ul.'i' ."lu'S,:;- 

Tliese tlircats of the A ttmiiev-fJcnr nil repeated bv the '\ItsI,.,i .„■„ 
fnresb„d.,ived in „ (niseand -can.l.-lousarti. le „„ tid' - bi'^et ii 

court ordored tli(^ Mnrshal to arrest o T rw.,! T ''' '"'^ ^''^ 
ported to tl.e A.^M^nU-l^^^^^.tTu^Arn^'^^o^^^^ ^rV" 

« il: beo-in by deehuing ti.e.-e Arts of Congress veid ""' 

f*i'"'''') 7). E. SIOKLES,^ 

Major Cfeneral Comiimadiiir/. 

in-CWef: '"""' ""' "" '"''■ "'"' '"'''■ "■■'■' '''"'"'' '"'■■" *"■ """^ '••"- 

WAi; DEPAnT.MrO.YT 
Mojo,: General B. R ^MUs. Co,^unm!a''^- ■^"''"' ''' ''*"■ 

r,-, . . . (S^igned) U. S. GliAXT, General 

ob e-ve'l v'""'" '■"'""■'"' '■" """ ""''""'^ *^"''-"-'"" "••«•'". 

be™';:;:;,- ',r;;;:."""-'™ '™'" •■"■ ''■■^^'*"*' "» ""^ --j-'. "-^ 

Ileremlli onelosed I IranMnit copies of tbe .ev.ral reports and coni- 
n|..nn.,,„ns on tbis sni.Jert fron, t.,e P„, t Ce«™»„der L Wi,;",;;:; , 
t .,tcf «bKb.l.,rnKf (i.to the SKtb iiutriit, was received en the 

t '' " ?• ■■' 5"»' ^f ""* 'f't'^-'- •■'!''••'•""" f; ."<■ 1" Mr. Goedlo e 
Marshal for North Carolina. Tbe-o p.pers haMng l„.en r . .d o 
olonel Denn,s, the Jnd^e Advocte of the District: f,.r 1 is ex , , 
on and re„,r.rks, I re.p,c,fully in,ite aitcntion to his caremil ™" 

n'r;!" ".ni tvbi'T-""; '■ "",'""•■"'"" ^■"^'''■'=" -«■'•-•■ ileari:; 

uii iiie Oc.so, cciid ^^J^(]l is .•d>o oiulojfd. 

My own views upon some, nt lerst, c:f the vnriou. .sneet^ of the 
^ K.t wdl he fouKdIn the eon.nunic.tion. .Iroadv torSe^ . ' 
in the followiiio- ohserv^.tionv: ' 

llMj occasion lor the pronndgntion of Oener.I Orders Xo. VK of April 
n, ISO., is hriefly set forth in ti;e order ils.lf, as Jollows • 

^nlitan^iTiriet^l^Huli^'h^^^^^^ pnpul.tion of tins 

ii'iu-tual le^ources. Ih." nr.turc and extent of 



tlie (lostUiition domnnd oxtraordinnrv measure^. Tho ppcrple nre 
bonie-<lo\v)i by a lieiivy burden of debt ; the crops of oraiii find warden 
l)rodn('e f;;ilrd \i\^t year; mr.ny familit's liavo been deprived of shelter; 
many more need food and ('b)thin;:r; needful implements and auxilia- 
rle-: of hu- b;;ndry -re Aery >caree; the Idiorlng pojndr.tion in niuuerous 
localities are thre;;tened with stirvatinn, unless; supplied Avitb food by 
the uo\ernment of the United Stntes; ihe inibility of a hu"2;e i)ortioli 
of the people to jmy taxes leaves the loc;;] antlioritie.=< without adequ:tte 
inean^ of relief; and tho gravity of the situation is increased by the 
general disposition shown by creditor- to (iiforce, upon an impov- 
erished people, the inunedinte collection of all cb.ims. 

"To Milfer al! this to s-o 0!i withoiit rostrr.int or remedy is to sacri- 
fice the .yener.il <i;oi:d. T' " !•■ ■' + - --'f '•' '^■' .1- -1' 11 be respected; but 
the appp:d of want and Moved by these 

cou'-idi r.'Mion^, the fidhr .... ... lounced : They will 

<'0]itlnue in f<irce, with such modilicr.tions as the occasion may re- 
quire, until the ci\il government of the rc.^pective States shall l)e 
est. !bli':he<l, in accordance with the re;,uircnients of the government 
of the United Stat 's. 

*^ Tlie Conunanding General earnestly desii-es and confidently be- 
lie\(!s that the obsi rvance of these reiiidatlons, and the co-operation 
of all ])ersons conceru'd in employing fiirly and justly the advantages 
still remaining to them, will nutigtite the di tress now existing; and 
th.it the a\enues of indu-try, entrrpri-e ajul org.inizution thus opened, 
will contribute to the permanent welfare and future hai)piness of the 
jx'ople.'" 

Tlie ])articuh-.r question now under censidcration arises upon para- 
{rr.qih II of the order, which is as follows: 

"^ •' II Jud'jmenfs or decrees, for the payment of money, en ca;; 
action arising between the IHth of December, 18(n, and the 1-Mh oi 
May, ISO"), shall not be enforced by execution again.st the ])roperty or 
the person of the defendant. Proceedlnns in such causes of action, 
now pending, sh.dl be stayed; ;ind no suitor process sh.-.ll be hereafter 
instituted or commenced, for any such causes of action." 

'i'he general tenor of the order may be understood from thrt'c or four 
additional par;igraph> : 

" T. Tm))risoinnent for debt is prohibited ; unless the defendant in exe- 
cution sli;dl be convictetl of a Iraiutule; t c<oncealment ir disposition ot 
his property, witii intent to hintler, dehiy and p.rcvent the creditoi' in 
th'> rccoM'ry of his debt or dem:'.nd. And the pr^ ceedings now estab- 
li;died in No:th and South C uolina, r.'-pectively, for the trial and 
detf'rmina.tion of such (pie, tions, may ]>e adopted." 

" ¥. All proceedings tor the recovery of money under contracts, 
wh'tncr und.er seal or by i»arole. tlie consideration for whicli was the 
]iurchase of negroes, twa suspended. J.idgmciils or de<rees entered or 
eiH"i lied for .»uch cau-^es cf action, siKili not ))e cnlorced." 



'• XI r. The practice of carrying deadly weapons, except by ofhcers 
and sol(,icrs in the military service v.t' t!i ■ United Sta.tes, i.s pi-(ihibit:"d. 
I'll' <<:nc(';dinent of such wca.pons on tlie per.on will b-e deciocd an 
auiiJMN :;tion of t'le oilence. A a inbition <-f this csvlcr v.ill render the 
ollender amenable to trid and ])iini hiuoitby 3iiliLary Commission." 

•• Xlir. The order d in this :\lilitary Deiiartment, 

prohibiting the i)iud.-hiiieiil of criuies and oliences by whipping. 



ni:iiiiiin<i", braiuliii"', stocks, ])il!oi-y, or oilier corpoi'al punishment, iiro 
in force nntl will be obeyed by all persons." 

******* 

"X\'. 'J'lie GeAci-iioi's of Xorlli and South Cai-olina ^h;dl have au- 
tbority. nitliin their jurisdictions ies])efii\(>ly. tc rei)i'i(»vo or i):!vdon 
any person convicted and sentenced by a ci\il court, ainl to remit tin<'s 
and penalties." 

"VII. In all s.'des of ] rnperty under execution or by order ot an}' 
court, there shall be reser\ ed out of the property ef any defendant 
Avho has a family dc^pendent upon his or her labor, a dwelling- house 
and a])i)urtenances and twenty acres of land foi- the use and occupa- 
tion ol the f-nnily of the d(t'!ulant, and necessjiry articles ol turnitun>, 
apparel. sid>si<tence. impiements of trad(\ husbandry, or other em- 
l)loynient. ot the value of ti\e huiidi'ed doUnrs, The homestead 
exemption shall inure only to the benetit of famiiie,' — that i^ to s-iy, 
to parjMit or parents and child or fhildi'en. In other ea'-e-, the exemp- 
tion slia.ll extend only to clothini.% imjilenients of trade or other 
emi)loymeiit nsiudly followed by the defendant, of the value of one 
liundred dollars. The exemption hereby made shdl not be waived or 
defe-ited by the act of the defendant. The exemi'ted i)ioperty of the 
defendant shall be ascertained by the sheriff, or other ollicer enforcin-^ 
the execution, who shall sj)eeiti(;dly describe tlie same and make a 
report thereof in each case to the court." 

It is proi)er to remark in passing that this o'der. which was one of 
the earliest issued by me ;iftev assunung this comn and, was at the 
time of its promulgation duly forwarded to the Adjuta.nt-General for 
information of the i)ropei- authoiity ; the order has been in force for 
nearly five months without any otlicial intimation that its l)rovi^inns 
ai-e disapproved. 

The charge that I liave ma.de an issue with the Sui)renie Court and 
have set at defiance its decrees, is utterly unfounded. If a subordi- 
nate functionary of a court of the Ignited States, whether forhisown 
purposes, or those of any others, chooses so to execute his functions 
that either he must be c< iitrolled, or else the military authr^rdy estab- 
lished by Congress over the e States is to be defied by him, and thus 
brought into contempt, the issue is madenj) ostensibly with a military 
commander, but in fact with the Congress of the United St'tes. The 
miiitary authority in these States is the creation (f Congress. The 
military force in tliese States ish(re to execute the laws Congress 
has passed. The modes and the agencit s now I'.rovided an<I employed 
to execu.te the pui-i)oses of Congr<^ss have bei n aj proA ed by Congress; 
the authority given has been confirmed, and the discretien by wiiich 
that authority was controlled has been enlarged by a Supi)len)ental 
Act. 

It would be in vain to charge me witl- a want of iiro])er r(\-prct to 
the judicial department (f the goxcrr incut, \\Ii<n to the utmo>t ]ios- 
sible limit to which I could go. I have exhildtid that deference and 
respect to it, which I felt that it became all jiersons in authority to 
exhibit. I have responded here, in my otlicial capaciiy, to the sum- 
mons of the (ourtiu'the I'nitid States. I 1);>a e. w Ik n re<iuired, re- 
spectfully presented for its considera.tion the cau-es and t! e grounds 
of my o.licial conduct. And when its onier v>as made to attach my per- 



son and commit nioto thciail, I \y;i>! told (rem tlie only souroe tlironuii 
Nvhicli tcuiild lenrn tlu' wishes of the President, not to submit to the 
tiiTost, InU to arrest tliose who %Yoidd ntten)] t to arrest me. And 
although the order of the court lor di-obeilicnce to which T was tlnis 
threat eneil, commanded me to deliver certain prisoners who had been 
tried and condemned fcr the mnrder ot I'nion soldiers under circun% 
stances of sreat afiiravjition ami atroeity, the President himself by a 
militai-y order siibfequently directed the removal ot the same prisoners 
from lliejiirisdict on ot the Uniteil Stdcs Court for South Carolina. 

The con plaint now made is, that I have forbidden the execution of 
the process ol the court of the United Stntes in North Carolina ; and 
have thns set myself above the law of the land. K it had been fairly 
s;dd that I entertained the oinnion th;.t the same reasons ot public 
l)olicy which con>traincd me to determine the time and manner in 
which collections of debts vhonld be enforced in the State courts, 
should c(iually guide me in the excrii>eof a just rnd necessary dis- 
cretion in like cases in all courts in this ]Military District, my position 
would have been truly stated. Fcr I dotirmly believe that Conuress, 
intending to secure the restor.ition of these States to the Union, made 
all other considerations subsidiary to the accomplishment ot this end. 
I do not believe that the process of the courts cf the United States 
should ; vcrride and set aside the orders Congress has empowered nie 
to make for the execntion of its measures. If it was further said, as 
it nu"ght be truly, and should l)e justly -aid, that I had never received 
directly or ind.rcctly any intimation that my superior in authority 
ditlered with me in this opinion ; or desired the mea-ures taken in 
Inrtherance of it moditird, many ex' ting: apprclicn-ions as to my 
ccnduct and UKUives w ould l)e corrcLted. 

If 1 was disponed to narrow the ground of my justitication, it 
would be e.'^sy b)r me to draw your attention to the fact that had the 
Z^Iarshal in N( ith Cai-oiina wisind to secure harmonious action be- 
tween the military and the civil dei);;rtments of the government, it 
could have licen easily done by simply postponing the execution of 
his process until the next term of the court— the time when by law 
he was required to make his return. This proceeding would have 
carried with it an accpiicscence in the authority of the military gov- 
ernment established in the rebel States, as provided by Congress. 

I will not discuss the i)oint how^ far the civil fumtionarles of the 
T'nited States, in \[v\y ot the great end to be accomplished, ought to 
co-i'i)erate in averting the pcrniciou-^ consequences to the jieople of 
these States, which it wa< the sole purpose of General Orders No. 10 
to prcM'nt. If great public mischief is justly apprehended by means of 
certain proceedingsin the State courts, is it not rea-onable to suppose, 
that the like lUMceedings in the court- of the United States wouUl 
])roduce the sanu^ mischief? If the evil will come from the mode in 
which the process of the State courts i> enforced, is it not reasonable 
to shi)po-e that the like p- ocess in the courts of the United States, en- 
forced in the "anu' mannci', would i)ro(lu:-i' the same mischief? If the 
jiuhlic good is p)-cniotcd and pidjKc order secured l)y regulating the 



time wlion yiroeoss in tlio State courts mny be enforced, is it too nivicli 
to expect th.it tlio courts of the United Rtntes sli5,iul(l cn-r.perntefor the 
same purpose, I'V the ndoi)tion of the sjune mean< ? Tho co\i)-ts nf the 
I'nited States are not respon-iMe fnr the means (h'vised fur tlie restora- 
tion of these States. Is it too niu(d) to su])pos(' nnd to expect, that all 
courts in this Military Distiict will recoirnize the authority and 
respect the measures adopted by tluise who are cliareed with that duty 
and are responsible for the result? If the modes of ])roeeedinu- in the 
court.? of the I'nited State- are 1>y th:^ laws of the United Statics assimi- 
lated to those of force in the courts ot th(> State ; and tin- military com- 
mander of thisl)istrict, in the exercise of lii>; indisputable ]>ower and 
to accomplish the end of Conofress in the r(>st()r;ition ot these States, 
should niodify such modes of proceedincr ; can it be supposed (hat 
the courts of the United States would refuse to modify their rules of 
I)rttcedure in all like cases ? If they were independent of all moiles of 
proceedinir in the courts of the State, and could resrulate their own as 
they i)leased, would it not even then be a very srrave error for a court 
of the Unite<l States to disresfard all considerations aftectinu" the peace 
and welfare ot the peo[)le of these States, and o\'(M-rule th;' orders o 
the military commander, char'ired with the execution of the n-!ea>ures 
Congress had provided for the recon>-truction of the Unlm ? 

While proceeding's in the courts of the > States for caus(>s nf action 
arising during the rebellion are stayed, once oi)en wide the doors of 
the I'nited States courts in this Military District, for such litigation, 
and who will mark the limit to fraud and pcrjiir}-, i)rovoked by 
cupidity, which will be iinoked to secure the jurisdiction <f the fede- 
ral tribunals? The citizen of N^rth C.u'nlina. whose debtor is in 
Xorth Carolina, has n. I remedy but in the cfurts if that State. The 
citizens of South Carolina. Inning with each olher the same relation, 
are restricted al>oas t«> their forum. In the recoNcry ff whatever these 
citizens of the same States respecti\<^ly claim again-t citizens of the 
same State, they must wait for a certain specifietl time in si.me case- ; 
in others, r.ntil a loyal and lecal Stat(^ government is i staMi-hed. l>ut 
if it be adnutte<l that my orders have no authority to restrain the acts 
of those wIiM come here from abroad, then the citizen of \'irginia 
crosses the line, and sues the citizen of Xorth (yaroliiia in the courts 
of the United States for that State; and the citizen of Georgia comes 
into th(^ courts of the United Sttites f;«r South Carolina, and does tlie 
same; and if suits can be s" maintaijieil .'igainst citizens, 'hen prosrcu- 
tions can likewise be maint lined against olH ers and soldiers on duty 
here, and ' ilitary autii-.rity woidd ce.ise. 

It is conceded that the military autln-riiy is niad<^ b_. Congress 
supreme, if not exclusive, in regaid to the people « f the^e two States 
within their res])ective t<'ii'itorial limit>^. If persons under the sa.me 
military government, in their respective State-, would cea>e to I)e so 
in either, ]>\ cros-^ing into the limits of th(> other, I m.iy ssk what 
o[)inion can be had of the consistency with which the power (f the 
governnient is thus exercisj-d? WhvA effect ii must produce up n the 
peo])le ol tln^se State ;, is toe plain to be di-cussed. 



r 



Tlio ivmfv'ies for Hit' icMin-s^ df pi-i\ ;ite \vroiiL;s li.ivc ;il\v;iys l^ccn 
sccurcf^. The criminal jiiris'licti"n '>f the Unite.! States has never 
been in the,sli(jhtest manner interfered vnth. I li:i\e dci mod it my 
duty to uiihold, ;ind if r('<iuired rntiU'ce that jurisdiction. T!u' ])o\v;n- 
uiv( 1) lo District COinnunidciN is intended to acconiplisli ce]lain iv: iilts 
dependinir almo-t e(iually upon the control lie exercises and upon 
the ]irotectinn lie afo'vds. That protection could not have been in 
any inaiuier niiM'C, acceplal)]y atrorded than by the measures 1 hav(^ 
adc'iited to enable the people to feeil ;ind clothe tliem-ielves and to 
recover from the exhaustive struu',c:le in whicli they had been engaged. 
The people of these States have felt that they inu-t o'-ey the la\v> of 
the United St.ites. They have <(-{'u, ho\Ae\er that the same power 
which demands .ibe<lieenc can ,ui\e a.ml his given that i)rotection 
which ha> enabled them to reprdr in -ome d<'gree tluir broken for- 
tunes. 

The ciicum-tnnces wliich Icil to the ] iMnudg:ition of (ieneral < rder^ 
No. 10. h:ne been already lirietly mentioned. There was ])resen*ed 
a popidrdion every whei'e inipoveri>hed, and in many eounties threiit- 
ened with starvatifMi. With the re-opening" of the ei\il tribunals, ^uits 
were eomnieneed in numbers far exceeding" any that had e\ er been 
known. When ft-reed to execution, final jirocess was carried to its last 
and harshest limit, without mercy. The eultivatuaiof the soil, from 
which abme ju'e-ent supiiort or future siK'cor could be derived, was 
iiboiit to be abandoned, because he who would undertake it'^ tilla.gc feit 
that it was uncertain if he would be allowed to hold his lands until his 
croj) wasniade: and thid if he did make tlie crop, he yielded his l:d)f)rto 
another who would t ike the proceed'- from his f tmily without re- 
mtirse. In all tli!' depiutments of bd-nr the same feeling" of tlespair 
wa-i prednmintnt. 

Thus driven lo (.lesperation, disorder JKid l>een manife>teLl ; \ ic'lence 
was threatened to ci\il eeiirts and civil officers; the public peace was 
ex]io-ed to inimiiKMit peril; and a strie of anarchy was impending" 
that would li:tve i"e«iuired lor its suppression the sternest exercise of 
military authority. To avert this unhapi)y condition, the evidence of 
wliii'h multiiilied around me, I felt it iUw to humanity, essential t" the 
attainment of the >! ject-^ for which I had been invested with olKce and 
command, and in a.ccordance with the just expcct;di.,ns of the gov- 
eruiiient who>e agent and (dlicrr 1 was, to exercise tlie power and use 
the authority w ilh w hich I Insd been clothed. 

If beyuud my own (omictitrii^ of C\\\y other cun>ider;itions were 
re<iuired, I had them in the a.pplici.tion ol the Governor of South 
Carolina, and of h'lidiog" men from all parts of the C'ai'olinas, who 
solicit'd the interpositieii <.( my auth' rity in tlij^ m.inner inditated, 
for the i)urii')se of giving" peace and, repose to con. muniiies, trampiiliiy 
and order to society and the means ol living to the pt>pulation. N(U" 
di' I know, ixXtvY fre(ju( nt and c.inful re\ iew of what was then di.ne, 
by what conduct I -hold 1 mori' justiy have provoked :ind deserved 
the censure of the go\ < rnment. than, if having [lower to jneA ent_it. I 
h'ld allowed the muitijdicaliou by thou -amis (f those who were then 



ft 

witli (lifficnlty led nnd kept alive by tlio charity of ilie irovernmont. 
Under .^iieli eircuni stances, I did interpose my autlioi ity. And to this 
extent only did T ^o: 1st To those wiio had already entered up jiidg'- 
nients it was said. Forbear for twelve months to enton-e your execu- 
tions; 2d. To those who were suini;: upon contratts made during the 
war, it was said, Take no further steps at present in the ])rosecution 
of your suits ; 3d. To those who were proseoutinir claims for the pur- 
chase money ot slaves, it wasisaid. They are pr hibited ; 4tli. To those 
who had demands upon contracts mad(> after the cessation of hostilities, 
no interference was threatened or allowed. 

If any interference therefore is to be justified, what other, what less 
than what was done, coidd have been done? 

If these orders are questioned, because of expediency, it is only 
necessary to refer, in addition to what has l)e(ii said, to the testimony 
of the Legislatures of the two Carolinas; they had exi)resscd as plainly 
as they could their conviction of the necessity for such regulations, 
and so far as they coidd do it, had endeavored to provide them. If, 
however, these orders are questioned because of an abuse of power, or 
because of an usurpation of -authority which I tli<I not i)ossess, or 
because they are deemed unnecessiry, there has been, as tlicreis now, 
ample power to cause them to be I'evoked. 

In regard to anotUer class of cases to which the.-e orders relate, I 
will not say more than to express my surprise tliat outside ot these 
States, there should be found any objection to a stay of proceedings 
in cases of contracts made here during tlje rel'dlion ; the consideration 
expressed in such contracts was in currency ci'eated to support the 
rebellion ; the substance of the contrai ts was therefore in open viola- 
tion of the l:iws of the United States. To aihnit a recovery according 
to the terms of the contract, was li".:t to maintain a palpable fraud; 
and to regulate the recovery by any other standard, was to recognize 
and adopt it as expressing a value, jis money, in oi»en di regard of the 
laws of the United States. What should be done ullimately in suih 
cases I did not undertake to decide. AVhat T did, was to suspend the 
enforcement of sucri contra(!ts until the establishment of a legal civil 
government. "Where both parties to these contr lets remained here dur- 
ing the rebellion, tliey could not complain that their rights should 
await the establislunent of a legal government, and such i)ro\ision as 
it should make for such casfs by legislation. Anil when either of the 
parties had professed to have remained faithful in his al'egiance to the 
govenuuent ot the United Stati'sjt would be dilHcult for liim to show 
liow he could consistently or lawfully have been conmcled with such 
a contract. 

In connection with thoc measures to which I ha\e referred. [ will 
only add a passing word : 1st, As to the matter of bail, whiih had 
l)ecome converted into an engine of ojjpre-sion: 2d. As to Ihc process 
of attachment, as it was kn<iwn here, ami which had also been abused ; 
od, As to 'juries: no State laws having provided for tlje new con- 
dition of affairs, it became necessai-y that I >l)0uld exercise the 
power I possessed o^■er the State hiws, to aik'.pt them to the rciiuirc- 



9 

monts of the proscnt tinio; or that, failiiij? to ilo so. jury trials in all 
the tril)iinals of the State and of the United Str.tes, shonld cease. It 
eould not be pretended that, specially charged to enforce obedience to 
the laws of Ihe United States, T conld acquiesce in that i)ositi\e abro- 
Sfation of them, which consi ted in not only a di-regard but an absolute 
deni:il of ilie laws which Conj>Tess had passed for the enjoyment of all 
civil and political i>i-ivilcgcs, without rco-ard to caste or color. 

Withcut there orders, let me ask l)y what law or upon what 
authority would juries be organized in the courts of the United 
Stages? I believe th:it the laws of the United States provide that the 
qualilications of jurors, and the modes ] rescrilxd for drawing juries 
in the courts of the United States, should be the same as are provided 
by the laws of the several Stiites. and adopted in practice in the courts 
of the State. Recent legislation of Congress has provided new causes 
of challenge, and therefore of exclunon of some who otherwise would 
be q\i:ditied to serve. But no law of the United States, of which T 
am aware, authorized j\iries to be drawn in the courts of the United 
States, diflerently from that mode which was practiced in the courts 
of the St:ite in obedience to the law of the State. It was therefore, 
in my view, essential not only for the administration of justice in the 
courts of the Strte but also in the courts of the United States, that 
the order in relation to juries should be made. 

To recapitulate: 

1. It is expressly declared by the Acts of Congress that the existing 
illegal governments in the rebel States are subject in all respects to 
the military commanders of the respective Di-trict*: so that there 
can be no question that General Orders No. 10 are obligatory upon the 
State courts. 

2. It has been decided during the present month by the Circuit Court 
of the United States for South Carolina, that the legal relations of 
l)crsons within this jSlilitary District are governed by the regulations 
prescribed in General Orders 10, and therefore the court refused to 
en1crt:;in, t<u*\ did not cn.tfvtiin the suit of a citizen of^Virth Caroliiui 
against a ciiizen of South Carolina, for a cause of action suspended 
])y the military authority^ol the District Commander. 

'^. The question remains, whether a person residing out of the ]\lilitary 
District can come here and l)y the process of a court of the United 
States enforce remedies rightfully prohil)ited as to all persons belong- 
ing within the District, and which confessedly could not be prose- 
cuted by any party in the State courts. Unless this question be 
answered in the negative, it follows th::t a stranger coming within 
this military command, brings with him rights and privileges not pos- 
sessed by pcr-ons rrsidinghere; and among theseprivileges isnot only 
an exemption in his own person from the obligation re>ting upon all 
resident- to obey the orders of the Military Commander, but also the 
jxiwcr to deprive any Carolinian, against whom such stranger prosecutes 
a demand, of whatever rights and innmuiities may have been given or 
as-ured to the peojile of the Carolinas by General Ch'ders No. 10. 



4. Xo question cr issue li;is yet;irisen between the eoiirts of the United 
States in this Military I'istrict :nul tlic District Comni.-inder. It ap- 
l)ejirs, ho\ve\cr, thi'.t nn i>Kie is in\ite(l by n siiborciinate niinisteriiil 
otfieer. The regiibitions ].rescribed in (Jeneral Orders No. 10. have 
not been con!-ider( d or i)as.-ed upon by any of tlie courts of the United 
States, excej)t in the Soutli Carolina circuit, \vhere, ;ts has been seen, 
the i)rovisions of the order were enforced. The onlyjtidicial precedent, 
therefore, is ag'aiiist the action of the Marshal of Nortli Carolina, who 
is not even a judicial officer. The proco-s in the hands of his deput? 
was not issueil upon any jiidiinient, dot ree or order in which tlie 
court had passed upon the jiowers, duties or orders of aj)y nnlitary 
(jfficer. It is to l)e presumed that perlect haruiouy of action does 
exist and will continue to exi>t between the i'v(U ral judiciaiT and the 
military authorities of tli(> United States in the Second Military 
l)i>trict. 

5. The execution of a certain process in theh;.nds of a Deputy IMr.rshal 
has been temporarily siis})ended ; the matter is lieid under advisement 
by the District Commander until the real nature and character of tho 
])roceedinfrs can be asce;t;iined by otHcial investigation and report. 
Upon the coming in of sucli report, one of seveivd \iews may be pro- 
perly taken of the matter: thi; Marshal may l)e allowed to g(i on; 
further action may be defi i-red until the next ttrm ol' tlie Cir' nit 
Court in North Carolina, \\ hen, on the return the JNIarshal may then 
make, the Court will decide whether or not it will observe the regu- 
lations prescribed by competent military aulhoi'ity; or the whole 
subject may be reported to the General-ii!-( liicf for his further instruc- 
tions and final disposition. 

0. Beyond the temporary suspension by the I'ost Connnander ot the 
execution of the civil process in question, and the appro\ al of such 
action by the 31ajor-General Conunanding the District, there has been 
no hindrance or interference; and this t(>mporary suspension involves 
no unusual delay, because the Marshal "is not i-e(iuired by law to make 
any i-eturn until the next term of the court. 

7. Although it may be assumed the Distiict Commander wouhl. un- 
less otherwise ordered, continue in force the order sus])ending the 
execution of th^ process in the hands of the ]\Iar-haI, and all other 
like process, it will be observed tliat (luestion has not yet been decided 
by the District Commander. The case for his definitive action has 
not yet been presented; and the delay is maiidy owing to the nfusal 
of the Marshal to give to the military authorities: the information in 
his possession which is essential to final aetion. 

8. The case as it now sta.nds involves the ina(hnissal)le proposition 
that any ]Nrarshal or Deputy Mar-hal of a court of the I^iuted States hit- 
ting in a rebel State, nuiy execute any process whatever in his hands 
against all persons within the State for whieh lie is appointed, no 
matter if tliat process be one for the arrest of a gairison, or of Ili<> 
Commanding Officer of a ^^!i]itary Po^t, or of the District Commamha ; 
a conclusion that practically subordinates the military government 



11 

c.-t, !l)1i:4ie(l by Con<;TC^:s in. those Striti'-. to tlie authority imd capriee 
ot a subordinate civil funtionary. 

J>. Tlio true intoiit and m<>nninsi' of the several Aet^^ of Congress lor 
th(> .liovrrnnicnt of the rebel St::tes is, thr.t in the absence of all lepd 
(•i\i] ;io\ crnnieiit thenin. the iiaranionnt :U!thorify of C(Ui,ure>s o\('r 
them sh.'.ll 1)0 exercised by the (Tene'ral-in-Chief of the nrnnos ; nnd, 
suljordinite to him, by the (ienerals conunrnding the several .Military 
Di.-tricts a>; they were cf-nstitnted on tln' nineteenth day of July, one- 
1hiius;ind eight hundred and sixty-seven, when the last of the Siipple- 
m( ntniy At ts lieeanie a Inw. 

1(>. It was nat contemplated by Congress that any court whatever, 
held in the rtbel States, and still less that any ^Marshal, Dei)uty ^Far- 
>lfil, Slieriff or Ccn.-t;;ble, shruld do or, be suHered to do any act in 
dci-ogation of the orders of the Gener.d-in-Chiel of the armies, or of 
the Ginerals ct nunanding Military Districts. The Supreme Court 
of the United States has rec ently, in a well known case, so eon-trued 
its own authority in refi.sing to interfere with the execution of tho 
Acts of ( ongress for the mi'itary government of these States, 

11. In June, 18G6, after llie peace proclamation, the Secretary of War, 
your illustrious ])redecessor, apjirovcd of my refusal to obey the man- 
date of the United States Court f«.r South Carolina; an<l when in 
CMiis( (juen< e of sucli refusal the court ord* red my arrest. I was in>truct- 
cd to take into custody all thepa.rties who might eu'rage in that jjro- 
cceding. It did not become necessary to execute those instructions. 
The executive con>munication now meution' d is the only one ever 
n'cei\ed by tln^ undersigned on the siil)jcct of his o!hi ial relation to 
the courts ot the United States in this ^Military District. 

12. The reported remark of the learned and di>liniini>h.ed Chief Jus- 
lice, that "the military authority does not extend in any respect to the 
Courts ol the United States," was made Ixforc the pas-age ot the Act 
of Congress of Jidy 19, 1i-'(')~. Congress assembled and passed that 
dechiiat- ry Act in consequence of c( rt du opinions of the Attorney- 
(lencral, the highest law otlicer of tin (Tovernment. And to prevent 
.-imilar (nd)aias>ments to the execution of the Acts of Congress, it 
wa- among I ther things enacted: "Tliat no District Commander or 
member o! the I'oards of iiegi-tr; tiun. or any of the officei's or 
aipointees acting undi r thtin, shall be bound in his action by any 
opinion of . -my civil odicer of the United St..tes." It would be ditficnlr, 
by hgi^l;ltive provision to detine within narrower limits the priroga- 
ti\es of civil aiitlu rity in the JNlilitavy I)i>triet-. 

K). The modes of procedure of the Circuit and District Courts of the 
United States, and the action of their ministerial ollicei'S in the execu- 
tion of process, have hitherto, by tlu' laws of Congiess and the rules 
of practice prescribed by the Supreme Court, conformed sid)stantially 
with the practice ;nnl proct'dure of the t-ourts of the State or Terri- 
tory in which the federal eonrls ;ire resjieetively hehl. 

14. Congi'css having substituted militiry authority lor that of certain 
illegal govenum-ntsin th<^>^e States, it c:;nnot be doubted that a federal 
court, sitting in this3iiiitary Di>tri<'1. iiavingthe power to mod.ify its 



12 

own nilcs, and apprcciatinfr tholruo intontand moaning- oftlioActs ot 
Congress aforesaid, w<idi1 find in tlie exigency wliich suggested those 
])rovisions of G< neral Orders No. IG relating to proceedings in certain 
civil actions, sufficient grdund to move tlie couit to conform to the 
ri'gulatioiis prescribed in tliat order, and tl)erel)y preserve die liarniony 
lieretofore existing between the federal judiciary, tlie local courts 
anil the military authority in the rel)el States. 

15. By tlie foregoing recapitidation, it will be apparent that no issue 
exists between tlie militai-y authorities in this Di>trict and any of the 
courts of the United Stato therein; th::t no court in this >:ilitary 
District lias refused to conform to the military regulation-; prescribed 
for the government of the ])eople thereof; that the M;;rsh; 1 of North 
Carolina in so f;ir as he claims exemption, as a pid)lic otticei-, Irom 
military control, does not appear lo have the sinclion of the judicial 
tribunal of which he is the servant; tha.t the jiction of the Po-t Com- 
mander at Wilmington has been conlined to the tempor.iry susjicnsion 
of an execution for the collection of a debt; th;it the District Com- 
mander holds the case under consideration, on the appeal of the Mar- 
shal from the action of Ihc Commanding Otficer of the Post; that the 
3Iarslial having been requested to furnisli the information essential to 
further action, refused to give it, and has proceeded iPi accfrdance 
with instructions received from the Attorney -Geneial of tlie Ignited 
States to enforce the execui ion of the process (1 the court; that tlicre- 
upon the District Commtnder, having rej e; ted his order to the 
Ccmm;inding Officer at "Wilmington to^tay the Marshal's proceedings 
until further orders, reported the occurrence to the General-in-Chief 
of the army, by whom the Distiict Commander has been directed to 
follow the course of action he had already indicat d and taken: and 
now, in obedience to the further order of the General-in-Chief of the 
army, all the jiroceedings in the case, together with the papers relating 
thereto, are transmitted ^vith the su<rgestions of the Major-General 
Commanding the District, for the review and final action of the 
Geniral-in-Chief. 

It has been my desire and aim in the measures provided lor the gov- 
ernment of the Carolinas, to devise and execute Ihem with as muili 
humanity, as much ftirbearance, I will even' say with as much magna- 
nimity as was consistent with the jjroper disclmrge of the duties jire- 
scribedfor meby Congress. None of the measures T have adopted Inne 
ever, so far as I know, been disavowed by the government, AVith 
the War Department, in all that has been done in this Military 
Distriit, the records of my office show the most ])erfect accord. 
Nothing has been done of which inimedir.te and lull inlormation 
has not been given to the proper authority. Nothing has been done 
which has not always been conceded as ])roperly subject to review, 
modification, or revocation by competent aiithi rity. Nothing of all 
that has been done, lias provoked otticird censure or dicited any 
official suggestion reciuiring the modification of n;y orders; and 
nothing wl'iich at first may have seemed questionable, has failed to 
receive official aiiproval, alter a tuU exiilanation of the circumstances 



13 

whic-li led to the measure. This statement, ^tl•ictly true as far as the 
exi>tcncc of this District is concerned, may be extended to the whole 
period ot time— now somewhat protracted— during which I have exer- 
cised command in tlie CaroUnas, wiih perhaps the single exception ot 
the following instance: In 18GG, with a view to conform the penal 
code of the rebel territory eonnnitted to my command, to the dictates 
of humanity as well as to prevent the v.holesale dislranchisement of 
loyalists, black and white, attempted by certain political managers, I 
prohibited the punishment of whipping as a penalty for oflences. This 
order was suspended by the Executive; but the law-making branch 
of the government subsequently adopted my prohibition. 

I have great satisfaction in reporting that the present condition of 
atiairs in the Carolinas is one of peace, and order; of general security 
to persons and property; ot gradual restoration in material welfare; 
of increased comfort and prosperous industry ; and that the people of 
my District have been lifted from that deep gloom, distress, and I may- 
well say despair, in which I met them when placed here in command. 
It is because of this improved condition of afl'airs, that the execution 
of the recent measures of Congress, designed for the government of 
these States, is proceeding in all respects most satisfactorily. 

The people of the Carolinas are at this moment accomplishing the 
first of the two great tests which are presented to them— registration 
and election— without the slightest show- of violence or tumult. 
A spectacle is daily presented at the ditlerent precincts, of men of dif- 
ferent ca>tes, and of all classes, placing their names on the registry ot 
voters, without strife or disorder, that but a short time since would 
have been considered as involving inevitable conflict and blood?hed. 
And, if existing orders and regulations remain m force, there are no 
sutticient grounds to apprehend any serious interruption of the tran- 
quility, security and order which have happily been maintained. 

And this has been done as it could only have been done, by the 
exercise of military authority. The lesson to be taught was hard to 
learn ; it could oidy l)e taught by military power. The great problem 
is fast approaching its solution. In a tew short months or weeks, 
the requirements of Congress will have been met; the votes will 
have been cast; the convention will have met; its results announced ; 
and constitutions for these States will have been made in pursuance 
of the conditions imposed by Congiess. Yet at no time more 
than the present has the military authority of the government been 
more necessary to secure the peaceful consummation of the great and 
patriotic work of reconstruction. And yet at this very time an issue is 
made which introduces wide-spread confusion as to the rightful char- 
acter and the lawful extent of military authority. 

The work of reconstruction in the Carolinas has all been done 
quietly, without violence, without the actual exercise of force. It is 
known the force is here and will be used if necessary. Nor can I 
hesitate in giving it to you as my deliberate conviction, that if civil 
agencies had been employed in the work of reconstruction, or had 
been allowed to control the military in the measures to be taken, they 



14 

would liavo f;ulo(l ; and that failure would have involved at some time 
)i resort to military force not to preserve order but to supjiress 
vioU-nce; and the blood so shed would have cried out to the people 
upon whose soil it had fallen. 

And when I consider how wide a chasm has been spanned; how 
much of a seojningly hopeless task has been achieved; how little 
remains to be done, to secure all that a dreadful war was waged 
to accomplish; how near is the approach to a returned Union; 
and when I realize to mysclt, that all of this is to be put to great 
]»eril and hazard by measures which threaten to impair the authority 
and lessen the means of those upon whom success or fiiilure depend, 
1 have only to express, in the most respectful manner, my astonish- 
ment and i-egret, That done, and having performed the further duty 
of presenting fully in this report the facts and considerations bearing 
Ut)on the important question now at i>sue, I shall faithfully obey any 
ertier you may give me. 

Very respectfully, your obedient servant, 

D. E. SICKLES, 
Major- General Commanding, 

(ienernl U, S. (tRant, General-in-Chief Arn^ies of the United States, 
Washington; 



15 

APPENDIX. 

[enclosure no. 1.] 
OFFICE OF THE UNITED STATES MARSHAL, 
Raleigh, North Carolina, July SOtb, 18G7. 

To Major- Gerieral Daniel E. Sickles, Commander of 2d Military 
District. 

Sir : — I have the honor to enclose a copy of an order from one 
of your subordinates to my deputy at Wilmington, which forbids 
the enforcement of an execution issued at the June term of the 
United States Circuit Court. 

You will perceive that Col. Frank founds this order upon your 
General Order No. 10, w^hich he assumes to be applicable to the 
Courts of the United States. In this I feel assured that he is mis- 
taken, since I cannot suppose that you would undertake to set aside 
any law of the Government to which you owe allegiance. lam 
strengthened in this view of the ca«e, by the opinion of the Chief 
Justice delivered to the Bar in this city, at the opening of the 
Court. You are aware that my duty is to obey the laws of the 
United States, and as I at the same time greatly desire to avoid a 
collision between the Civil and Military authorities, T liave directetl 
my deputy to suspend the execvition of the writ until yon can be 
informed of the facts. 

I have the honor to be 

Very respectfully, 
[Signed,] DANIEL R. GOODLOE, 

U. S. Marshal 
Official copy: 

J. W. Clous, 

A. A. A. Gen I. 



[endorsements upon en€losure no. 1.] 
A. 
HEADQUARTERS, SECOND MILITARY DISTRICT, 
Charleston, S. C, August 12th, 1867. 

Respectfully referred to Commanding Officer Post of Wilmington, 
N. C, with instructions to report fully on the several cases pend- 
ing in the United States Courts, in which he has suspended execu- 
tion. 

Information is desired as to where and when the several causes 
of action accrued — whether the aoiions were for debt or other 



IG 

causes, wlien the suits were begun, when judgment was given, and 
when the final process of execution issued. 

It is presumed the Marshal will furnish this information, as it 
may be obtained from the Clerk of the Court. 

A copy of the opinion delivered by Chief Justice Chase to the 
bar, at the opening of the Court which is referred to in the within 
letter, is also desired. 

By command of Major-General D. E. SICKLES 

[Signed,] J. W. Clous, 

Capt. 38th U. S. Inft., 

A. A. A. Gen'l. 

HEADQUARTERS, POST OF WILMINGTON, 

August 17th, 18G7. 

Respectfully referred to Mr, Daniel R. Goodloe, United States 
Marshal, with the request that he will furnish me wiih the infor- 
mation required. ' 

[Signed,] R. T. FRANK, 

Bvt. Lieut. CoL and Capt. 

8th Infty Com'dg Post. 



UNITED STATES MARSHAL'S OFFICE, 
Raleigh, August 20th, 1867. 

As I cannot recognize the right of the Military authorities to 
obstruct or inquire into the nature of the process of the United 
States Courts put into my hands, I must decline to give the infor- 
mation called for, as to " where and when the several causes of 
action occurred; whether the actions were for debt or other causes, 
where the suits were begun, where judgment was given, and when 
the final process of execution issued." 

The address of the Chief Justice to the Bar, was published in the 
newspapers of the State, about the 10th June, and can doubtless 
be found at Wilmington. 

[Signed,] DANIEL R. GOODLOE, 

U. S. Marshal, 
For District of North Carolina, 



17 



[tXCLOSURK NO. 2.] 

HEADQUARTERS, MILITARY TOST OF ^YILJMINGTON, 
Wilmington, N. C, August 22d, 18G7. 

Capt. J. ^Y. Clous, A. A. A. G., Charleston, S. C. 

Sir :_i have the honor to enclose herewith the letter of Marshal 
Gooi>LOE, which was referred to me for report. In accordance 
with your suggestion, I referred it to Mr. Goodloe, who, it will be 
seen by his endorsement, declined giving the information. I have 
written to the Clerk of the Court direct, for it, and will forward 
his reply as soon as received ; thinking, however, that the General 
desired this information at as early a day as possible, I called upon 
Judge French, the counsel for the plaintiff in one and the princi- 
pal case, and obtained from him the following information, which 
is probably as correct and reliable as can be obtained from any 
other source. This is a case in which Hall & Rood of New Or- 
leans are plaintiffs, and Kahnweillee & Bros., of this city are 
defendants. 

The cause of action is a promisory note executed the 5th day of 
April, 1862, for one thousand six hundred and eleven dollars forty- 
six cents, at thirty days; the note was given for sugar and molass- 
es purchased in 1862. Writ was issued November 5th, 1866, to 
November term of United States Circuit Court, at Raleigh. Judg- 
ment was given at the June term 1867, for two thousand one hun- 
dred and two dollars forty-six cents, principal and interest; cost 
thirty-three dollars forty-six cents. Total amount of execution, 
three thousand one hund ed and thirty-five dollars ninety-two 
cents. Execution issued July 11th, 1867. 

The other case is one in which A. S. Moore & Co., of Boston are 
plaintiffs, and Kahnweillee & Bros., of this city defendants. 
The following information is gained from the defendant himself: 

The cause of action is a promissory note executed in the early 
part of 1861, the exact date he cannot give. Amount of note four 
hundred and fifteen dollars eighty-one cents. This note was given 
for merchandise purchased sometime previous, probably previous 
to 19th December, 1860, though the note was executed subsequent- 
ly. Suit began, judgment given, and final process of execution 
issued the same as in the first case. 



18 

These are the only two cases in which I have suspended action. 
There are other cases in the hands of the Deputy Marshal. 
Very respectfully your obd't servant, 

[Signed,] R. T. FRANK, 

Bvt. Lieut. Col. and Capt. 

8th Inf ty, Com'dg Post. 



Official : 



J. W. Clous, 

Capt. 38th Inft'y, 

A. A. A. G. 



HEADQUARTERS POST OF WILMINGTON, 

Wilmington, N. C, August 17th, 1867. 

3Ir. J. H. Nef, Deputy U. S. Marshal, Wilmington, N. C. 

Sir : — My action in suspending until further orders, the execution 
of certain decrees of the United States Courts in North Carolina, 
attempted to be enforced in violation of General Order No. 10, current 
series, from the Headquarters Second Military District, having 
been approved by the Major-General Commanding, I shall not per- 
mit, until I receive further orders, the judgment or decree of any 
Court, to be enforced in violation of existing orders, and shall use 
the necessary force to prevent it. 

Very respectfully. 

Your ob'dt Ser'vt, 
[Signed,] R. T. FRANK, 

Bvt. Lieut. Col. and Capt. 8th Inf'ty, 

Com'dg Post. 



Official 



J. W. Clous, 

Capt. 38th Inf'ty, A. A. A. G. 



[enclosure no. 3.] 

HEADQUARTERS POST OF WILMINGTON, 
Wilmington, N. C, August 28th, 1867. 

Captain J. W. Clous, A. A. A. G., Charleston, S. C 

Sir: — I .have the honor to forward herewith, the information as 
received from the Clerk of the U. S. Cov.rt, relative to the two 



19 

cases referred to former letters ; this embraces all the information 
I have, or that I am able to obtain in relation to these cases. 
- Very respectfully. 

Your obedient servant, 
[Signed.] R. T. FRANK, 

Bvt. Lieut. Col. and 

Capt. 8th Infty. 
Commanding Post. 



A. 

[*' STATEMENT."] 



A. S. Moore & Co , 

vs. 
Jacob Kahnweilee, 
Daniel Kahnweilee. 



Acceptance drawn — Lynn, Oct. 
18th, 18G0, six months after date. 

Amount $415 81. Sued to No- 
vember Term of U. S. Court, 1866. 



Judgment therein U. S. Court, 1867, and execution accordingly. 

] Note given New Orleans, La., 

Hall & Rodd, I April 5th, 1862 ; thirty days after 

vs. [-date. Amount $1,61146. Sued to 

Daniel Kahnweilee. | November Term U. S. Court, at 

J Raleigh, N. C. 
Judgment therein June Term U. S. Court, 1867, and execution 
accordingly. 



B. 
RALEIGH, NORTH CAROLINA. 
August 26th. 1867 



Co!. R. T. Frank. 



Dear Sir:— Enclosed please find statement as called for in the 
Wilmington cases of execution, now in controversy. Mr. Riddicks' 
absence, prevents his inclosing this himself, but the facts are as 
given. 

Hoping it may answer your request, I am 
Yours ob'dt. servant, 
[Signed,] N. V. OLD, 

For N. J. RiDDicK, 
Clerk of U. S. Court. 

Head'qrs 2i) Military District. 

CfScial copy. 

J. W. Clous, 

Capt. 38th Infty, A. A. A. G. 



20 

C. 

\_From the Raleiffh Register. 1 

CHIEF JUSTICE CHASE IN RALEIGH. 

Raleigh, June 6. 1867 

A large number of the most distinguished members of the Bar of 
this State, were present at the opening of the United States Cir- 
cuit Court, which tonk place in the Senate Chamber this morning. 
Before proceeding to business, Chief Justice Chase made the follow- 
ing remarks : 

Practitioners and Gentlemen of the Bar: — Before proceeding to the 
regular business I think it proper to address a few observations to 
you. For more than four years the Courts of the Union were 
excluded from North Carolina by the rebellion. When active hos- 
tilities ceased in 1865 the national military authorities took the 
place of all ordinary civil jurisdiction, or controlled its exercise. 
All Courts, whether State or national, were subordinated to military 
supremacy, and acted, where they acted at all, under such limita- 
tions, and in such cases as the Commanding General, under the 
direction of the President, thought tit to prescribe. Their process 
might be disregarded and their judgments and decrees set aside by 
Military orders. Under these circumstances the Justices of the 
Supreme Court abstained from attending the Circuits which includ- 
ed the Insurgent States, their presence being unnecessary, as the 
District Judges were fully authorized by law to hold the Circuit 
Courts without the Justices of the Supreme Court, and to exercise 
complete jurisdiction in the trial of all criminal and almost all civil 
cases. Their attendance was unnecessary for another reason. 
The Military tribunals at that time, and under existing circum- 
stances, were competent to the exercise of all jurisdiction, criminal 
and civil, which belongs, under ordinary circumstances, to Circuit 
Courts. Being unnecessary, the Justices thought that their atten- 
dance would be improper and unbecoming. They regarded as 
unfit in itself, and as injurious in many ways to the public interests, 
that the highest officers of the Judiciary Department of the 
Government shovild exercise their functions under the supervision 
and control of the Executive Department. 

At length, however, the military control over the civil tribunals 
was withdrawn by the President. The writ of Habeas Corpus, which 
had been suspended, was restored, and military authority in civil 
matters was abrogated. This was effected partially by the pro- 
clamation of April, and fully by that of August 22, 1866. That 
proclamation reinstated the full authority of the National Courts in 
all matters within their jurisdiction, and the Justices of the Su- 
preme Court expected to join the District Judges in holding the 
Circuit Court during the interval between the terms at Washington. 

On the 23d July, 1866, however, an Act of Congress reduced the 
number of the Circuits and changed materially the Districts of 
which the Southern Circuits were comprised, without making or 
providing for an allotment of the members of the Supreme Court to 
the new Circuits, and, without such allotment, the Justices of that 
Court have no Circuit jurisdiction. The effect of the Act before- 



21 

was to suspend the authority of Justices to hold the Circuit Courts 
in the altered Circuits. This suspension was removed by the Act of 
March 2d, 18G7, by which a new allottment was authorized. 

Under this Act the Justices of the Supreme Court have again 
been assigned to Circuit duties, and the Chief Justice nas been 
allotted to hold, with the District Judge, the National Courts in the 
Circuit, of which the District of North Carolina is made a part. 

I am here, therefore, to join my brother, the District Judge, in 
holding the Circuit Court in this District. It is the first Circuit 
Court held in any District witliin the insurgent States, at which a 
Justice of the Supreme Court could be present without disregard 
of superior duties at the seat of government or usurpation of juris- 
diction. 

The Associate Justices allotted to the other Circuits will join in 
holding the Courts at the regular times prescribed by law, and 
thus the national civil jurisdiction will be fully restored through- 
out the Union. It is true that military authority is still exercised 
v;ithin these Southern Circuits, but not now, as formerly, in con- 
sequence of the disappearance of local authority. It is now 
exercised only to prevent illegal violence to persons and property, 
and to facilitate the restoration of every St-ite to equal rights and 
benefits in the Union. The military authority does not extend in 
any respect to the Courts of the United States. Let us hope that 
henceforth neither rebellion nor any other occasion for the associa- 
tion of any military authority over Courts of Justice will hereafter 
stispen'l the due course of judicial administration by the national 
tribunals in any part of the Republic. 



[enclosure no. 4.] 
["by telegr.\ph."] 

HEADQUARTERS, SECOND MILITARY DISTRICT, 
Received Charleston, S. C, August 27th, 1867. 

From Wil3iington, North Carolina, 
August 27th, 1867. 

Capt. J. W. Chus, A. A. A Gen I, Charleston, S. C. 

Counsel for defendant informs me that, as Judge Chase stated 
Military orders did not apply to his Court — Order Number ten 
(10) was not pleaded — he supposing it to be useless to intervene 
Military orders declared to be inoperative before that tribunal. 
The note in the case where Moork cSc Co., were plaintiffs, was 
dated December nineteenth (19), eighteen hundred and sixty 
(1860.) 

[Signed,] R. T. FRANK, 

Bvt. Lieut. Col. Com'dg. 
Official copy : 

J. W. Clous, 

A. A. A. Genl. 



The following endorsement was placed upon the foregoing docu- 
ments : 

Respectfully referred to Bvt. Col. E. W. Dennis, Judge Advo- 
cate 2d Military District. 

By command of Major-General D. E. SICKLES. 

J. W. Clous. 
Capt. 38th Inft, 
A. A. A. Gcnl. 



[enclosure no. 5.] 

HEADQUARTERS, SECOND MILITARY DISTRICT 
Judge Advocate's Office, 

Charleston, S. C, August 27th, 1867. 

Capt. J. W. Clous, Actg. Asst. Adjt. General. 

Captain: — The papers relating to matter of the refusal of the 
•United States Marshal for North Carolina, to conform to regulations 
provided by the order of the District Commander, respecting final 
process in certain cases in the two States comprising this District, 
referred to this office for remarks, are respectfully returned. 

It appears that at the last June Term of the L^nited States Circuit 
Court for the North Carolina District, a judgment was rendered in 
favor of certain plaintiffs, citizens of Louisiana, against certain 
defendants, citizens of North Carolina, upon a promissory note 
made April 5th, 1862, for goods sold in that year. Execution 
having issued to the Marshal, his proceedings thereon were stayed 
by the Post Commander, in pursuance of Paragraph II, of General 
Orders No. 10, from these Headquarters, dated April 11th, 1867, a 
copy of which and of the preamble setting forth the grounds 
thereof, is as follows : 

" The general destitution prevailing among the population of this 
Military District cannot be relieved without affording means for 
.the development of their industrial resources. The nature and 
extent of the destitution demand extraordinary measu^res. The 
people are borne down by a heavy burden of debt ; the crops of 
grain and garden produce failed last year ; many families have 
been deprived of shelter; many more need food and clothing; 
needful implements and auxiliaries of husbandry are very scarce; 
the laboring populations in numerous localities are threatened with 
starvation, unless supplied with food by the Government of the 
United States : the inability of a large portion of the people to pay 
taxes, leaves the local authorities without adequate means of relief; 
and the gravity of thj situation is increased by the general dispo- 
sition shown by creditors to enforce, upon an impoverished people, 
the immediate collection of all claims. 

To suffer all this to go on without restraint or remedy, is to sacri- 
fice the general good. The rights of creditors shall be respected ; 



23 

but the appeal of want and suffering must be heeded. Moved by 
these considerations, the following regulations are announced : 
They will continue in force, with such modifications as the occasion 
may require, until the civil government of the respective States 
shall be established, in accordance with the requirements of the 
Government of the United States. 

The Commanding General earnestly desires and confidently be- 
lieves that the observance of these regulations, and the co-operation 
of all persons concerned, in employing fairly and justly the advan- 
tages still remaining to them, will mitigate the distress now exist- 
ing ; and that the avenues of industry, enterprise, and organization 
thus opened, will contribute to the permanent welfare and future 
happiness of the people. 

II. Judgments or decrees, for the payment of money, on causes 
of action arising between the 10th of December, 1860, and the 15th 
May, 1865, shall not be enforced by execution against the property 
or the person of the defendant. Proceedings in such causes of 
action, now pending, shall be stayed ; and no suit or process shall 
be hereafter instituted or commenced, for any such causes of 
action." 

The Post Commander was instructed to prevent levy and sale» 
and did so. 

The matter seems to have been reported to Washington, and 
certain dispatches have passed between the General-in-Chief, and 
the Major-General Commanding this District, whereby the latter, 
though at first directed to exempt the United States Court process 
from the said order, has been subsequently authorized to pursue 
the course originally adopted. 

Meantime, the process in the hands of the Marshal is suspended 
by the Post Commander, by force. 

In the conflict of authority which is brought to an issue by the 
proceedings that have been above recited, one side or the other 
must prevail. Law, justice and expediency call for the recognition 
in one, by the other and by all the world, of paramount power; 
Either the military must give way, or the Marshal yield. If the 
Commanding General should bo compelled to submit to be over-, 
ruled, the results which would follow would be two-fold in their 
bearing, affecting the people of this District on the one hand, and 
on the other, involving far-reaching consequences of the gravest 
moment, as regards the general administration of the reconstruc- 
tion enactments. 

The immediate practical efl'ect of allowing this particular order 
of the Commanding General to be annulled, deeply concerns the 
people, whose welfare and prosperity he properly deems it his. 
high duty to consult, while exercising the functions with which he 
is entrusted, in the execution of the .lets of Congress. These peo- 



24 

pie, suffering under countless calamities, wbijb, tliough entailed 
by the wicked folly of some of them, are calamities that no 
patriot can desire to see aggravated or prolonged, hailed with uni- 
versal satisfaction the relief afforded by the edict which bade the 
relentless creditor stay his hand. Citizens of all parties and of 
every calling discerned in the circumstances under which the 
debts suspended were contracted, convincing reasons for relaxing 
the rigor of the rich man's remedies. The popularity of the mea- 
sure was shown by the favor with which it was received. Its wi«e 
beneficence is demonstrated by its operation, which has been an 
unqualified success. If it be now disregarded in the United States 
Courts, such an event produces either the gross injustice of per- 
mitting non-resident creditors to have the advantage of the exclu- 
sive right to swallow up the substance of unfortunate debtors, while 
Carolinians cannot collect from each other, or else, ii renders 
necessary, for uniformity and impartiality, the abrogation of the 
order, altogether, and the precipitation, upon these people, of the 
evils heretofore averted. The rescis.sion of General Orders No. 10, 
would fall with blighting force upon the Carolinas. Its distrcs.sing 
effects would be visible on every side ; in trade paralyzed, and 
merchandize sacrificed; in harvests interrupted; in uugatherel 
crops, scattered, wasted, and destroyed ; in estates broken up 
and sold at nominal prices ; in labor disorganized ; in unsatisfied, 
prodigious judgments, loading the dockets ; and in the dejected 
countenances of hundreds of unhappy families, confronted at last 
with the horrors of a winter of famine. 

In the presence of considerations such as the foregoing, it seems 
very plainly the duty of the Commanding General not only to exert 
all his powers to maintain a rule, the reversal of which would be 
so manifestly impolitic and fraught with such disastrous conse- 
quences to the inhabitants of the District committed to his govern- 
ment ; but also, to lay before his superior, the General-in-Chief? 
the reasons which should dissuade from steps unintentionally but 
nevertheless inevitably leading to the infliction of so much suffer- 
ing and so much wrong. 

But there is another view of this subject, of even greater impor- 
tance, because it concerns not only local but general interests. 
What has been presented in the preceding observations, though 
believed to strongly support the action of the District Commander, 
relates solely to the welfare of the population of these two States. 
It remains; to point out that there is a great question of right 
involved, in the determination of which the whole country is inter- 
ested, and that a decision thereof adverse to the claims of the 



'25 

Military Commander, and in favor of the recognition of the authori- 
ty of the United States Marshal as paramount, would not only do 
violence to principles of law, but would carry consequences una- 
voidably calculated to baffle and paralyze the hands of all engaged, 
in good faith, in the work of reconstruction. 

It is proper to notice at the threshold of this discussion, what 
will natu)-ally occur to a professional mind, namely, that except as 
a question of administrative policy, respecting which communica- 
tions have passed between the District Commander and his superior 
officer the General-in-Chief, there is no "case" in this matter pro- 
perly before any determining authority or in any forum. Tf liability 
for disrespect to the United States Circuit Court in North Carolina, 
or for resisting its officers, or obstructing ils process, is predicable 
of the Post Commander at Wilmington, or any other party or par- 
ties, to the transactions that have taken place, the law provides a 
penal remedy, and the practice of the Court prescribes the mode of 
procedure according to which the offender or offenders may be 
dealt with. 

It appears that the provisions of General Order No. 10, directing 
the stay, the enforcement of which interrupts the Marshal, was not 
set up by the defendants, nor in any manner judicially passed upon 
by the Court. 

There is, therefore, no antagonism between any decision of the 
Court and the military authorities ; and won constat that, if the 
matter were brought before the Court at the next term, there would 
be any difference of opinion disclosed between the Judge and the 
Commanding General. For all that is known, neither the District 
Judge nor Chief Justice Chase is inclined to dispute the validity 
and binding force of the provisions of the order. 

It is true the Chief Justice is reported to have remarked, in his 
address to the bar at Raleigh, that -'the Military authority does 
not extend in any respect to the Courts of the United States." But 
this observation was made before the passage of the Act of July 
19th, which defined with enlarged scope the powers of District 
Commanders ; and, moreover, there is nothing in the remark that 
can be construed as denying the power of the Commander, to 
modify the local law, nor as refusing to conform thereto in the 
execution of the process of that Court. Had not the Marshal made 
such haste to press the issue, it would not be now before any depart- 
ment or officer of the government. The regular course would 
seem to require that the Marshal should, at the next term, when 
and where alone the process in his hands is properly returnable, bring 
to the attention of the Court, in the customary manner, any infor- 
mation or representation touching alleged obstructions of his pro- 



26 

ceedings tliat be may see fit. It will then and there, — and then and 
there otilf/, he smta.h\e and legitimate fur the subject to be further 
treated by the civil authorities. 

It is reasonable to believe, that when the controversy which has 
been needlessly transferred to an improper arbiter, shall be brought 
before the learned and able Chief Justice, his enlightened judg- 
ment, instructed by events in which he has borne conspicuous and 
illustrious part, will promptly see in the circumstances of the case 
ample reason to adopt the spirit of the language of Mr. Justice 
Story, in the familiar case of Beeis vs. Ilauyhton, 9 Peteks, S. C. 
R., 329, wherein the Supreme Court held that the proceedings of 
ministerial officers of Federal Courts, should be conformed to the 
provisions of local law. 

That accomplished Judge said ; "The Process Act of 1789, C. 
21, expressly adopted the form of writs and modes of process cCf 
the State Courts, in suits at common law. The act of 1792, C. 36, 
permanently continued the forms of writs, executions, and other 
process, and the forms and modes of proceeding in suits at com- 
mon law, then in use in the Courts of the United States, under the 
Process Act of 1789 ; but with this remarkable diiference, that they 
were subject to such alteration and additions as the said Courts 
respectively should, in their discretion, deem expedient; or to 
such regulations as the Supreme Court of the United States should 
think proper, from time to time, by rule, to prescribe to any Circuit 
or District Court concerning the same. The constitutional validity 
and extent of the power thus given to the Courts of the United 
States, to make alterations and additions in the process, as well as 
in the modes of proceeding in suits was fully considered by this 
Court in the cases of Wayman vs. Southard, 10 AVueat, 1; and 
the Bank of the United States vs. Halrtead, 10 Wheat, 51. It 
was there held, that this delegation of power by Congress was 
perfectly constitutional ; that the power to alter and add to the 
process and modes of proceeding in a suit, embraced the whole 
progress of such suit, and every transaction in it from its com- 
mencement to its termination, and until the judgment should be 
satistied ; and that it authorized the Courts to prescribe and regu- 
late the conduct of the officer in the execution of final process in 
giving effect to its judgment. And it was emphatically laid down 
that " a general superintendence over this subject seems to be 
properly within the judicial province, and has always been so con- 
sidered," and that ^' this provision enables the Courts of the Union 
to malce such imj^rovements in its forms and modes of proceeding as 
experience may suggest : and especially to adopt such State laics on 
this subject as might vary to advantage the forms and modes of proceeding 



which prevailed in September 17S0."' The result of this doctrine, as 
practically expounded or applied in the case of the Bank of the 
United States vs. Halstead, is, that the Courts may, by their rules 
not only alter the forms, but the effect and operation of the pro- 
cess, whether mesne or lin::l, and the modes of proceeding under it ; 
so that it may reach property not liable, in 1789 by the State laws 
to be taken in execution, or maij exempt property, ichich teas not then 
exempted, but has been exempted by subsequent State laivs. 

It can scarcely be doubted that Chief Justice Chase would discover 
in the condition of affairs which led the Major-General Commanding 
to issue General Order No. 10, incontrovertible reasons why the 
Court should find this one of the cases where the adoption of local 
regulations is called for by justice and expediency. These regula- 
tions modifying the statutes of the State have been prescribed by 
the District Commander, by virtue of the powers reposed in him by 
Congress, and they have, until revoked by competent authority 
the sanction of law. 

And this brings the discussion to the inquiry, whether, after all, 
Ihe judicial authority of the United States Circuit Courts can in 
fact properly nullify the orders of the District Commander. It 
seems very clear that the intent and meaning of the Acts of Con- 
gress, known as the Reconstruction Acts was to place these States 
exclusively under military rule, and to constitute this rule, for the 
time being, the supreme authority. Not only does the first Act of 
March 2d, 1867, make these States (Sec. I.) "subject to the military 
authority of the United States," but Sec. X of the Act of July 19th 
enjoins upon the Commander that he is not to be " bound in his 
action by any opinion of any civil officer of the United States." 
These two provisions, taken together, in view of the general tenor 
of the enactments, plainly indicate the purpose of Congress to com- 
mit the regulation of affairs to the military department of the gov- 
ernment exclusively ; for in the nature of things supremacy of 
military authority — which is martial law — is incompatible with 
civil interference; and, as if to save all doubr, Congress has added 
the express injunction to disregard the opinion, not only of any 
State officer, but of any civil officer of the United States. 

It is not for the Major-General Commanding this District to 
pause to inquire into the expediency or constitutional sanction of 
the provisions of a set of laws of Congress, especially laws which 
have brougat order out of chaos in the Southern country, and 
which promise, if their execution continue successful, to give peace 
to the nation and security to liberty. The provision is broad and 
comprehensive. No civil officer, Marshal, Judge, Attorney, nor 
(as a civil officer,) President, is empowered to instruct the District 



28 

Commander. He is to act according to his own 'discretion, subject 
only to militarji orders from his proper superior. 

It must, readily appear to any person acquainted with affairs 
that numberless perils attend the concession of pnramount author- 
ity to the United States Courts sitting in these Military Districts. 
If this be granted (let one single illustration of its fatal effects be 
cited), does not the coiilinehient of every prisoner arrested by 
military authority become-subject to be terminated by the decision 
of a United States Judge on haficas corpus f 

Plenary powers to cnf'orc •, by the customary penalty of imprison- 
ment, tlie maintenance of order, is conferred by Congress. But 
suppose tlie Commanding Generals are compelled to obey the writ, 
in how many of the Districts will those powers be of any avail ? 
In how many will the .Judges acknowledge the constitutionality of 
the Acts ? Is it not perfectly plain that, if these District Judges be 
allowed to call the army into Court, the Acts become nvgatory ? 

If to this suggestion it be answered that in the District Court for 
South Carolina .Judge Bryan has recognized the binding force 
of this very order, it may be replied that, while his ruling supports 
the belief that the Chief Justice ought to, and would, do likewise, 
it furnishes no assurance what would be decided by him or any 
other Judge, in case the constitutionality of the Reconstruction 
Acts was ever called in question. 

To recapitulate, the examination of this matter in this office 
leads to the conclusions — 

I. That a revocation of General Order No. 10 would be griev- 
ously prejudicial to the interests of the people of the Carolinas. 

II. That it does not appear that any conflict exists between the 
United States Circuit Court for North Carolina and the Military 
Commander of this District, but merely a collision with the Mar- 
shal prematurely forced by the latter. 

III. That it is reasonable to believe that Mr. Chief Justice 
Chase, with the question before him, will conform proceedings on 
final process to the local law as modified by the Commanding 
General. 

lY. That Congress intended to make the Military in these Dis- 
tricts paramount to all other Departments of the Government. 

V. That -to concede to the United States Courts authority to 
overrule the Military Commander will be apt to lead to substantial 
nullification of the Reconstruction Acts. 



29 

All of which is respectfully submitted, with expression of regret 
that the brief period of a few hours allowed for the preparation of 
this report precludes that complete presentation of the subject, 
which its great importance demands. 
I have the honor to be. 

Very respectfully, 

Your obedient servant, 

E. W. DENNIS, 

Brevt. Col., Judge Advocate U. S. A., 
Judge Advocate Second Military District. 



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